The Fallacy of Knowles
In December 2004, the Florida Supreme Court finally released its opinion on Knowles v. Beverly Enterprises-Florida Inc. et al. The Court affirmed the Fourth District Court of Appeals decision which held in order for a Personal Representative to bring suit on behalf of a deceased nursing home resident, the alleged deprivation of the nursing home resident’s right as guaranteed by Chapter 400 must have caused the resident’s death.
The decision has been hailed by nursing home defense attorneys and advocates as a win for the nursing home industry. Charles Giambrone, editor of Andrew’s Nursing Home Litigation Reporter said that “[t]he state Supreme Court's decision to affirm Knowles could have wide-reaching ramifications for how nursing home lawsuits are defended.”
Unfortunately, for the defense practitioner and the industry as a whole, the Knowles decision appears impressive but has little substance in today’s litigation. The litigation explosion of the late 1990’s left the long term care industry in Florida without a major insurance carrier to back them, and many national nursing home chains pulled out of the state. To this day many Florida nursing homes struggle to get professional liability coverage that does not adequately protect them, nor allow for victims of real negligence to be compensated fairly.
The Supreme Court held on to Knowles for so long, that most claims that its decision could affect have already been resolved. The Florida Legislature amended the Nursing Home Resident Rights Act in 2001 which in part specifically addressed Knowles by stating that a Personal Representative can bring a suit on behalf of a deceased nursing home resident regardless of whether the deprivation of rights caused the resident’s death. The 2001 revision to Chapter 400 affects all claims which accrue after May 15, 2001.
So what is Knowles impact on the defense of nursing home claims today? Despite the commentary from some of the pundits, the effect on the defense of claims in negligible. Most pre-2001 claims have been resolved, and for those that have not, Knowles only bars claims under Chapter 400 for nursing home negligence that did not result in the death of the resident. Many cases brought under Chapter 400 allege that the deprivations of resident rights did cause the resident’s death, and it has never been difficult for Plaintiffs to find experts to file affidavits supporting their claims.
For the even rarer pre-2001 claims where the allegations against the nursing home are that the defendant violated the resident’s rights, but it did not cause the resident’s death, there is nothing to bar the Plaintiff from having a claim for negligent survival under Fla. Stat. § 46.021, since the death of the resident has no bearing on whether or not someone can bring a negligent survival claim on their behalf. This is unlike the revised Chapter 400, which states that all actions for negligence in a nursing home must be brought under Chapter 400.023, (the so called “exclusive remedy” provision) the prior law had no such exclusion.
From the defense standpoint, the advantage for getting the Chapter 400 claim dismissed is that under the prior law, Plaintiffs could potentially get attorney’s fees in the event of a judgment in their favor. This is the single benefit to the defense from the recent Knowles decision. For the exceedingly rare pre-2001 claim that negligence in a nursing home caused damages, but not the death of the resident, the Plaintiff will not be able to get attorney’s fees automatically in the event that they receive a judgment in their favor[1].
The fact is that the revision of the Chapter 400 in 2001 altered the landscape of the defense of nursing home claims. It removed automatic attorney’s fees for Plaintiffs, capped punitive damages, and applied a strict negligence standard for the proof of claims replacing a strict liability standard. Knowles could have had an impact several years ago, before the revision of Chapter 400. Perhaps it could have stemmed the tide of insurance carriers fleeing the state. Today, however, it will be nothing more than a footnote in the nursing home defense attorney’s guidebook, in the “what could have been” chapter.
